388 F.

3d 66

UNITED STATES of America, Appellee,

v.
Walter BORREGO; Dina Maldonado; Juan Jose Bouret;
Miguel Anders Pena; Lydia Colon; Angel Luis Font,
Defendants,
Juan Figuerate, Defendant-Appellant.
Docket No. 03-1473.

United States Court of Appeals, Second Circuit.

Argued: June 21, 2004.
Decided: October 29, 2004.

Appeal from the United States District Court for the Southern District of
New York, Victor Marrero, J.
Robin W. Morey, Assistant United States Attorney (David N. Kelley,
United States Attorney for the Southern District of New York, Mark A.
Racanelli, Assistant United States Attorney, on the brief), New York, NY,
for Appellee.
Catherine M. Foti & Andrew M. St. Laurent (Morvillo, Abramowitz,
Grand, Iason & Silberberg, P.C.), New York, NY, for DefendantAppellant.
Before: LEVAL, CABRANES, and WALLACE, Circuit Judges.*
LEVAL, Circuit Judge.

Juan Figuerate appeals from the judgment of the United States District Court
for the Southern District of New York (Victor Marrero, J.), rendered on July
31, 2003, sentencing him primarily to 240 months incarceration. Figuerate
pleaded guilty to conspiracy to distribute more than one kilogram of heroin.
The district court granted Figuerate a downward departure pursuant to 5K1.1
of the United States Sentencing Guidelines ("U.S.S.G.") for his cooperation
with the government. The court declined to resolve several disputed sentencing
issues after determining that the resolution of those issues would not affect the

ultimate sentence. On appeal, Figuerate argues that we must remand to compel

resolution of the unresolved issues. We reject the defendant's argument and
affirm the judgment.
BACKGROUND
2

Juan Figuerate was indicted on June 7, 1990, for conspiracy to distribute more
than one kilogram of heroin, in violation of 21 U.S.C. 846, and possession
with intent to distribute heroin, in violation of 18 U.S.C. 2 and 21 U.S.C.
812, 841(a)(1), and (b)(1)(C). Figuerate entered into a cooperation agreement
with the government, and on August 3, 1990, pleaded guilty to the conspiracy
count. Shortly after the cooperation agreement was made, he was released on
bail to assist the government in its investigations. Figuerate worked as a
confidential informant and rendered valuable assistance. However, he
developed an alcohol problem, which rendered further cooperation useless.

Sentencing was scheduled for November 22, 1991. On November 19, 1991, the
government submitted a motion under U.S.S.G. 5K1.1 and 18 U.S.C.
3553(e) asking the district court to depart downward from the otherwise
applicable guideline range in light of Figuerate's cooperation. Prior to the
imposition of sentence, however, Figuerate fled, and he remained a fugitive for
almost eight years. He was rearrested in Pennsylvania on November 12, 1999,
on new narcotics and weapons charges.

Figuerate was then returned to the Southern District of New York for further
proceedings in this case. Judge Marrero directed the United States Probation
Office to prepare an updated Presentence Investigation Report ("PSR"). The
PSR proposed that Figuerate be found responsible for the distribution of more
than eight, but less than ten, kilograms of heroin, resulting in a base offense
level of 34. The PSR went on to suggest a two-level enhancement pursuant to
U.S.S.G. 2D1.1(b)(1) because of the defendant's awareness of his
organization's use of firearms, a three-level enhancement pursuant to 3B1.1(b)
because the defendant was a supervisor of criminal activity involving five or
more participants, a two-level enhancement pursuant to 3C1.1 for obstruction
of justice because of the defendant's prolonged flight, and denial of any
reduction under 3E1.1 for acceptance of responsibility because the defendant
had continued his criminal conduct while a fugitive. The PSR thus
recommended a net offense level of 41, a Criminal History Category of IV, and
a sentencing guideline range of 360 months to life imprisonment. The
government submitted a letter reaffirming its earlier 5K1.1 motion for
downward departure based on the defendant's substantial assistance, while
asking the court at the same time to take into account his flight and violation of

the cooperation agreement.

5

Figuerate argued (i) against the obstruction of justice adjustment on the ground
that obstructive conduct affecting sentencing was not specifically cited in the
version of the Guidelines in effect as of the date of his offense, November 1,
1989, but was later included in an amendment effective November 1, 1990; (ii)
that he should receive credit for acceptance of responsibility notwithstanding
his flight; (iii) that his offense level on the basis of those adjustments should be
37 with a sentencing range of 292-365 months, rather than 41 with a sentencing
range of 360 months to life; (iv) that in addition to the cooperation departure, he
should be granted a downward departure for diminished capacity under
5K2.13; and (v) that, if he did not merit departure based on diminished capacity
alone, he should be granted a "totality of the circumstances" downward
departure under 5K2.0 based on the combination of factors underlying his
acceptance of responsibility, substantial assistance, and diminished capacity
requests.

After hearing argument on the disputed sentencing issues, the court granted
Figuerate a downward departure for his cooperation, and imposed a 240-month
prison term without ruling on the disputed issues. Citing United States v.
Shuster, 331 F.3d 294 (2d Cir.2003), the court explained that it "need not rule
on disputed issues ... if the Court concludes that it would still depart to the same
sentence regardless of the issues in dispute." Regarding the disputed
adjustments, the court noted that it need not rule on them because the sentence
imposed was already below the guideline range advocated by the defendant.
Regarding the diminished-capacity departure, the court stated that "[s]ince the
sentence the Court will now impose would be the same regardless of whether
or not the Court would grant Mr. Figuerate's request for a downward departure
based on his diminished capacity, the Court will not reach that issue."

Figuerate brought this appeal.

DISCUSSION
8

The defendant argues that the District Court erred in sentencing him without
having decided disputed sentencing guidelines issues. He contends,
furthermore, that a ruling in his favor on these issues would have resulted in a
shorter sentence. We find no merit in his claims. It is clear the court would
have imposed the same sentence regardless of the findings that might have been
made on the contested issues.

In United States v. Shuster, the sentencing court had found over the

In United States v. Shuster, the sentencing court had found over the
government's protest that a requested four-level upward adjustment did not
apply, but also added in the alternative that even if the adjustment did apply it
would not affect the ultimate sentence because the court would have departed
downward by the same amount. The government appealed, contesting the
adjustment ruling. Shuster, 331 F.3d at 295-96. We ruled that because we had
"sufficient guidance from the sentencing judge" that the sentence would have
been the same in any event, we had no obligation to decide whether the district
judge was correct in rejecting the upward adjustment. Id. at 297.

10

Shuster relied in part on our reasoning in United States v. Bermingham, 855

F.2d 925 (2d Cir.1988), an early Guidelines case. In Bermingham, the
defendant contended that his offense level should be level four, whereas the
government argued for six. The sentencing court resolved the dispute in favor
of the government, but sentenced the defendant to nine months, a term which
fell within the applicable range under either level four or level six.
Bermingham, 855 F.2d at 929-30. Reviewing the sentence on appeal, we
concluded that "disputes about applicable guidelines need not be resolved
where the sentence falls within either of two arguably applicable guideline
ranges and the same sentence would have been imposed under either guideline
range." Id. at 931. But because it was not clear that the district court would
have imposed the same sentence under either offense level, we remanded for
clarification. Id. at 935-36.

11

As we noted in Shuster, we have applied the reasoning in Bermingham in

various other contexts, noting that when the dispute at issue has no bearing on
the determination of the sentence duration, district courts need not rule on
disputes concerning offense level adjustments, United States v. Tracy, 12 F.3d
1186, 1203 (2d Cir.1993); United States v. Garcia, 936 F.2d 648, 656 (2d
Cir.1991); the appropriate offense guideline, United States v. McHugh, 122
F.3d 153, 157-58 (2d Cir.1997); and the appropriate criminal history category,
United States v. Larson, 112 F.3d 600, 606 (2d Cir.1997); United States v.
Mayo, 14 F.3d 128, 132 (2d Cir.1994). Thus, it has long been the view of this
Court that disputed sentencing issues need not be resolved where the sentencing
court (i) could, consistent with the Guidelines, have imposed the same sentence
regardless of the outcome of the dispute, and (ii) indicates that it would have
done so.

12

In the present case, the sentencing judge could have imposed a sentence of 240
months imprisonment regardless of the outcome of the disputed sentencing
issues, and made clear that the sentence would have been the same regardless.
The PSR recommended a guideline range of 360 months to life. The defendant
argued that the appropriate range was 292-365 months because the PSR

improperly withheld credit for acceptance of responsibility and improperly

added points for obstruction of justice. Even accepting all of defendant's
arguments on the adjustments, the court would have been authorized to impose
a prison term of anything under 365 months. Similarly, granting defendant a
downward departure for diminished capacity, in addition to one for cooperation,
would have justified a sentence at any level below 365 months. The sentence
imposed, of 240 months, was undoubtedly one the court could have imposed if
it had accepted all of defendant's arguments. Judge Marrero made clear
furthermore that he would have imposed this same sentence regardless of the
resolution of the disputed issues. That being the case, to require the court to
rule on issues which would have no effect on the sentence would merely require
performance of a meaningless academic exercise.
13

There is no meaningful difference between this case and Shuster in that regard.
In Shuster it was the appeals court which was absolved of the obligation to pass
on the correctness of an adjustment decision by the district court because the
decision had no effect on the sentence imposed. Here it is the sentencing court
which was absolved of the obligation to pass on disputed sentencing issues
again because they had no effect on the ultimate sentence. The governing
principle in both cases is that a finding that will have no effect on the
adjudication need not be made.

14

The defendant argues that this principle can have no application where the
defendant may receive the benefit of both a contested adjustment and a
downward departure. He contends one cannot know where a sentence based on
downward departure will end up without knowing from what point the
departure was taken. He cites cases in which we remanded sentences where the
court had erred in its calculation of the appropriate guideline range before
departing below that range, because it was not clear that the court would have
given the same ultimate sentence if it had instead departed from the correct
lower range. See United States v. Moon, 926 F.2d 204, 210 (2d Cir.1991)
(remanding a sentence departing to 48 months from guideline range of 78-97
months where the correct guideline range was 63-78 months); United States v.
McCall, 915 F.2d 811, 814 n. 3 (2d Cir.1990) (remanding a sentence departing
to 108 months from guideline range of 151-188 months where the correct
guideline range was 87-108 months). This argument oversimplifies. It is true
that in some cases a sentencing judge structures a downward departure as a
reduction by a specified number of levels, or months, from the otherwise
governing offense level. In such cases, the sentencing judge may explain, "By
reason of the defendant's cooperation, under U.S.S.G. 5K1.1, I find it
appropriate to deduct 4 levels," or alternatively, "I find it appropriate to deduct
60 months." It is true that in such cases, the sentencing court's ruling on the

defendant's entitlement to prevail on adjustment disputes, such as disputes about

acceptance of responsibility or obstruction of justice, will affect the ultimate
sentence after giving effect to the departure. In such cases the sentencing court
may not have given "sufficient guidance" for us to say that the dispute made no
difference to the ultimate sentence. But departure may also be conceived in a
manner that departs more completely from the structure of the Guidelines. This
is particularly likely to occur when the factors that justify the departure are
thought by the sentencing judge to have a dominant importance which eclipses
the adjustments specified by the Guidelines. It appears that is what the court
did in this case.
15

Having considered all the pertinent factors in this unusually complex case, and
particularly the appropriateness of a substantial downward departure for
cooperation, the court determined that the sentence should be 240 monthsno
more, no less. The court made clear that the duration of the sentence would not
be changed either by different findings on the disputed adjustment issues, or by
granting a departure for diminished capacity as well.1 So long as a departure is
permissible, and the extent of departure is not "unreasonable" with reference to
the governing mandates of sentencing, see 18 U.S.C. 3742(e)(3), it is within
the court's power to impose. The court is not obliged to waste its time making
findings that would have no effect on the sentence or on the appeal. We have no
reason to remand.

CONCLUSION
16

The judgment of the district court is affirmed.

17

The mandate in this case will be held pending the Supreme Court's decision in
United States v. Booker, ___ U.S. ___, 125 S.Ct. 11, 159 L.Ed.2d 838 (2004),
and United States v. Fanfan, ___ U.S. ___, 125 S.Ct. 12, ___ L.Ed.2d ____
(2004). Should any party believe there is a need for the district court to exercise
jurisdiction prior to the Supreme Court's decision, it may file a motion seeking
issuance of the mandate in whole or in part. Although any petition for rehearing
should be filed in the normal course pursuant to Rule 40 of the Federal Rules of
Appellate Procedure, the court will not reconsider those portions of its opinion
that address the defendant's sentence until after the Supreme Court's decision in
Booker and Fanfan. In that regard, the parties will have until fourteen days
following the Supreme Court's decision to file supplemental petitions for
rehearing in light of Booker and Fanfan.

Notes:

Notes:
*

The Honorable J. Clifford `Wallace, United States Court of Appeals for the
Ninth Circuit, sitting by designation

Because the motion for a totality of the circumstances departure was premised
on the same facts as the motion for an acceptance of responsibility adjustment
and a diminished capacity departure, it is clear that, had the court granted a
totality of the circumstances departure, it still would not have granted a
sentence other than 240 months